The court said the one-drug option was beyond Fogel's authority to offer and told him to review the state's new injection procedures, adopted in response to his 2006 ruling, and decide whether they were constitutional.
Judge Fogel said it will take months to review the constitutional implications -- and to get a new supply of the necessary drug:
Fogel said Tuesday evening that Brown's lawyers had raised substantial questions about whether the state's execution practices would be better than the ones he had criticized. He said it was both unfair and unnecessary to penalize Brown for the lack of time to conduct a full review before Thursday night's scheduled execution.
He blamed the state for setting the execution date so soon after enacting the new guidelines. But a bigger issue seems to be the lack of drugs. It will be early 2011 before the manufacturer has more available:
That is when the state is due to receive a new supply of the sedative Sodium Pentothal, the sedative injected first into condemned inmates. The prisons' current supply has an expiration date of Friday, and the manufacturer says it has no more available now.
How pathetic that a man's life hangs on whether or not the state has a drug to murder him in stock.
Brown's lawyers had accused the state of rushing to execute him while its Sodium Pentothal was still usable. In its order Monday night, the appeals court said it was "incredible to think that the deliberative process might be driven by the expiration date of the execution drug."
As to those new regulations, there seems to be only one: Brushing the inmate's eyelashes:
[The state] cited a new requirement that a prison staff member brush the inmate's eyelashes, speak to him and shake him during and after injection of the sedative.
Brown's lawyers say:
The new procedures are "almost a rubber-stamp" of the old ones... Both use virtually the same doses of each drug, administered from outside the chamber by an execution team that includes many of the same members, following similar directions.
While the eyelash-brushing feature is new, they said, the previous rules required the prison warden to poke the inmate to make sure he was unconscious - a provision in effect during executions in which problems arose, according to Fogel's 2006 ruling.
So, who will stop the execution in 2011? Gov. Schwarzenegger will be gone, and it will either be Jerry Brown or Meg Whitman. Dismal choices. The two debated last night.
On the death penalty, Brown said that while it was his desire not to use death as a punishment, "we have (the death penalty) and we have to make it work," and insisted that he will "faithfully carry it out."
As attorney general, Brown said that he has "defended literally hundreds and hundreds of death-penalty convictions." When Brown was governor from 1975-83, no death penalty cases came before him.
And Whitman?
Whitman said she would be a "tough-on-crime" governor who "will appoint very conservative judges who will not legislate from the bench."
